Consent and fraud Flashcards
Historically if V gave consent despite the behaviour being fraudulent there could still be a defence as in which case
Clarence: When having sex with her husband there courts assumed that a wife had consented/
D was infected and passed the infection onto V and convicted s47-s20
conviction quashed as courts ruled V had consented and it was irrelevant that V was unaware of the infection which might have lead to her to not consent. At the time it was assumed a wife would always consent to her husband
Today true consent cases in fraud and deception require what
1) V must not know the identity of D
OR
2) V must not know the nature and quality of D’s acts
If V does not know the identity of D there was be no
true consent
In which case was D suspended from dentistry but continued to practice and was conviction on first instance for ABH as she had restored to deception
Richardson
Her conviction was quashed on appeal because there was no fraud to her identity and she has not deceived V to the nature and quality of her act
Legal principle from richardson
Where consent is obtained by fraud, it will not be vitiated unless V has been decided as to d’s identity. There was no deception in this case; there was true consent and therefore no ABH
What happened in richardson
Suspended dentist
Conviction on 6 counts of ABH on the basis her fraud vitiated her patients consent.
On appeal accepted defences argument that patients were no deceived to her identity or nature and quality as she was a qualified dentist carrying out dental treatment/
Prosecution argued that the identity of the person should be extended to included the qualifications or attributed of the dentist this was rejected
suggested civil law should be used idea of informed consent CA said not to mix crim and civil
overall decision in Richardson
Quashed as no fraud to her identity and she was still a fully qualified dentist even if she was suspended, She has also not deceived V to nature or quality of her acts
What was the Crown’s argument in Richardson
That the concept of identity of a person should be extended to cover the qualifications or attributes of the dentist of the basis that the patients consented to treatment by a fully qualified dentist not a suspended one
Why did the CA reject the Crowns arguments
rejected but also felt uneasy about the Crown using reasonable surgical intervention as this would squeeze to the need for a defence of consent in the case of deception
what other argument was put forward that was rejected
to consult civil law as in civil law concepts such as informed consent prevail but CA said criminal and civil do not run along the same track and should not be mixed as informed consent has no place in the criminal law
what do most fraud cases involve
sexual offences
In the nineteenth century consent was only considered in terms of the nature of the act and not the quality of the act therefore in which cases was there still consent because the fact she had been deceived to the quality of the act was irrelevant
Clarence
where did the approach to just nature of act break down first
In canada in the Canadian Supreme Court in the case of Cuerrier which first introduced the concept of informed consent for cases involving STDs
What has Cuerrier has meant must happen
If D had an infection then he must tell V and ensure any sex is as safe as possible
In which english case was is accepted that fraud could negate consent if had been deceived by either nature or quality of the act
Tabassum
